Menu

Cell Phones, Facebook, and the Fourth Amendment

Reminder: Searches of Student Electronic Devices are Subject to the Fourth Amendment

As today’s kids grow up completely surrounded and immersed in a digital culture, it is not surprising that students spend a considerable amount of time communicating to one another “online.” According to a 2015 Pew Research study, 92% of teens report going online daily, with 24% of teens stating they go online “almost constantly.” Being so “connected” means that teens frequently and primarily communicate with one another through digital means, such as texting, or through social network sites and apps like Facebook, Instagram, Snapchat, and Twitter.

The nearly ubiquitous use of social media by school age children means that, instead of passing physical notes to one another in class, students are more likely exchanging texts, tweets, likes, and snaps. This ability to communicate, instantly and somewhat covertly, can lead to issues both in and outside of the classroom.

Given this drastic increase in the use of electronic devices by students in the school setting, it is not surprising that school administrators are often faced with disciplinary incidents involving electronic communications. In fact, it seems that administrators want or need to search the contents of a student’s phone or other device almost as often as they want or need to search a student’s locker, backpack, or even pockets.

However, it is important to remember that while the idea of teenagers using electronic devices in the classroom is somewhat new, the constitutional principles governing searches of student property by school staff are not. The U.S. Supreme Court recognizes that while the Fourth Amendment prohibition against unreasonable searches applies to public schools, it is typically not necessary for a school to obtain a warrant or demonstrate probable cause before executing a student search. Rather, all that is necessary in most cases is “reasonable suspicion” that a student has violated either the law or school policy, and that a search may reveal evidence of such violation. Courts have applied this standard to searches of electronic devices and student social media pages and accounts, with varying results. In light of the potential liability, schools should be careful before attempting to search any student’s cell phone or social media page.

Join Eric Quiring at the MSBA Leadership Conference on Thursday, January 14 at 2:30 p.m. in room M101C for a more detailed discussion regarding student searches in the electronic world.